Chaudhary (Migration)

[2018] AATA 3607

Chaudhary (Migration) [2018] AATA 3607 (30 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Devesh Chaudhary

CASE NUMBER:  1716212

DIBP REFERENCE(S):  BCC2016/3232987

MEMBER:Kira Raif

DATE:30 August 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 -  Skilled - Nominated visa.

Statement made on 30 August 2018 at 1:25pm

CATCHWORDS
Migration – Cancellation – Skilled Nominated (Permanent) visa – Subclass 190 (Skilled (Nominated)) – Whether the applicant provided, or caused to be provided, a bogus document – Where the delegate found that information provided by the applicant could not be verified – Positive state of mind regarding breach must be reached before the power to cancel arises – Concerns of delegate do not have sufficient probative value – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), ss 101, 103, 107, 109, 375A
Migration Regulations 1994 (Cth),

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Zhao v MIMA [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 190 - Skilled - Nominated visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant is a national of India, born in January 1983. He was granted the Class SN Skilled visa on 9 September 2014. On 21 June 2017 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 and s. 103 of the Act. The applicant provided his response to the NOICC and his visa was cancelled on 21 July 2017. The applicant seeks review of the delegate’s decision.

3. The Tribunal informed the applicant of the existence of the 375A Certificate. The applicant provided written submissions to the Tribunal addressing the validity of the Certificate, essentially stating that he is unable to effectively address the issues on review without the disclosure of documents. The applicant has not satisfied the Tribunal that the Certificate is invalid or that he has been denied an opportunity to provide meaningful submissions due to the non-disclosure.

4. The applicant appeared before the Tribunal on 30 August 2018 to give evidence and present arguments. The applicant’s former employers were available to give oral evidence to the Tribunal but the Tribunal determined it was not necessary to take oral evidence from them. The applicant was represented in relation to the review by his registered migration agent. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

5. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

6. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

   Did the Notice comply with the requirements in s.107?

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. In his submission to the Tribunal of 24 August 2018 the applicant argues that the Notice was not validly issued. The applicant refers to another Tribunal decision in which the Tribunal formed the view that the Notice in that case did not have adequate particulars. It is unclear how such a finding that was based entirely on the facts of that case could assist the present applicant. The fact that in a different case the Notice was found not to contain sufficient particulars would hardly establish that the Notice in the present case is invalid.

9. The applicant argues that it was not possible for the delegate to reach the state of mind required to issue the NOICC as the Department was unable to obtain information about two of the three employers and no adverse information could be drawn from it. That does not appear to be the case. Departmental inquiries, details of which are set out below, suggested that one of the companies could not be reached and the information was ‘unverifiable’ but with respect to the other two employers, the enquiries produced information which the delegate considered to be adverse to the applicant. It was legitimate for the delegate to have regard to that evidence in forming the intention to cancel and it was up to the delegate to determine the weight to be given to that evidence.

10. The applicant also argues that the delegate failed to identify and particularise information provided by the applicant which was said to be incorrect. The Tribunal does not agree with that assessment. The NOICC refers to the applicant’s employment and his claimed duties and responsibilities. The NOICC refers to the inquiries with the applicant’s employers which bring into question his claimed employment and his duties and responsibilities. The Tribunal is satisfied that the Notice had adequate information and particulars to inform the applicant that his employment and the nature of his duties and responsibilities were in question. The Tribunal is satisfied that the applicant had adequate particulars to understand that and to be able to respond to the Notice.

11. The Tribunal is satisfied that the Notice contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements.

12. In his submission to the Tribunal the applicant also raised concerns with the delegate’s decision but the Tribunal conducts a review de novo and any such deficiencies in the delegate’s decision to which the applicant refers do not affect the Tribunal’s decision.

    Was there non-compliance as described in the s.107 notice?

13. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 and s. 103 of the Act.

14. The applicant provided to the Tribunal a copy of the primary decision which contains the following information.

    a.The applicant made the application for the Skilled Subclass 190 visa on 11 Ma 2014. The applicant completed a form Application for Points Based Skilled Migration visa and provided the following information on Page 7 in relation to his employment:

    i.21/11/12 – 11/5/14     Manager – Operations (Customer Care)

    Golden Red Consulting Private Ltd

    Duties:manage and supervise customer service coordinators to include evaluation

    Ensure necessary steps are taken to resolve customer service issues

    Perform desk evaluation to ensure that all customer service function

    ii.28/10/10 – 2/11/12     Manager – Customer Services

    Aryans Communications Link Ltd

    Duties:Manage and supervise customer services coordinators to include evaluation

    Ensure necessary steps are taken to resolve customer services issues

    Perform desk evaluation to ensure customer service function

    iii.23/5/05 – 3/8/10         Team Leader – operations

    Convergys India Services Private Ltd

    Duties:Manage and supervise customer services coordinators to include evaluation

    Ensure necessary steps are taken to resolve customer service

    Perform desk evaluation to ensure customer service function.

    b.The applicant stated ‘yes’ in response to a question ‘has the applicant been employed overseas in their nominated occupation or a closely related occupation at a skilled level immediately before lodging this application’. The applicant stated that he had been employed overseas for 5 years in the past 10 years.

    c.The applicant signed a declaration confirming that he had read and understood the information provided to him in the application. The applicant stated ‘yes’ to the question whether he provided complete and correct information in every detail on the form and any attachments.

    d.On the basis of the information supplied by the applicant on the form and the employment reference letters he subsequently submitted to support his application, the applicant was found to meet the criteria for the grant of the visa and the visa was granted on 9 September 2014.

    e.On 17 June 2016 the Department received an allegation that the applicant provided incorrect information regarding his work history in India and submitted bogus documents to support his claimed work history and facilitate the grant of the visa.

    f.The Department carried out integrity checks in relation to the applicant’s employment in India. On 1 June 2017 the overseas post in New Delhi provided the following information

    i.Employment checks with Convergys India Services Private Ltd

    -  No response was received from the company despite many emails and reminders

    -  Unable to contact the company by telephone

    -  Outcome – unable to verify

    ii.Employment checks with Aryans Communications Link Ltd

    -The website of the company does not function

    -The information about web traffic to the company’s website was checked. The website where it was checked indicated that the company website did not have any traffic even historically

    -The phone and address search did not retrieve any information or direct link to the company

    -One of the contact numbers listed on the employment letters was invalid and the other was found to be a residential number for the past eight years (which overlapped with the period of employment 2010 – 2012).

    -Business currently located at JMD Regent Square was contacted and denied having heard about the company

    -There is no evidence of the company ever existing

    iii.Employment checks with Golden Red Consulting Private Ltd

    -There were multiple companies linked with the registered address as stated in the employment reference letter

    -The web traffic to both the websites indicates that the volumes are small to almost none.

    -The owner of the company had little or no knowledge of the applicant’s work experience as he claimed he had limited exposure to the visa applicant’s work. The delegate noted that this appeared improbable as the company is a very small one (only 20 employees according to the owner) and the owners keep a close watch on the work of the employees

    -The owner had knowledge about the work tenure of the referee Mr Ashish Arora and detailed knowledge about other aspects of the company but not about the applicant’s work.

    -The owner stated that all employees had employee codes while no employee code was found on the applicant’s salary slip

15. In his written response to the NOICC the applicant ‘categorically denied’ providing incorrect answers or bogus documents with his visa application.

16. With respect to Convergys. The applicant stated that he found it ‘very surprising’ that the Department officers could not contact the company. The applicant referred to the various documents confirming his employment with that employer, including certificate of graduation, certificates for recognition of service and for various achievements and the training the applicant has completed. The applicant states that he had contacted HR department of that company, which has undertaken to provide further evidence of his employment.

17. With respect to Aryans, the applicant states that he was employed in that company between 2010 and 2012 and did not keep in touch with his colleagues after leaving the company and he did not follow the progress of the company or its subsequent demise. He is unaware of the company’s fate. The applicant states that he searched for the company through the Ministry of Corporate Affairs and provided a screenshot of the information on that website. The applicant also enclosed an article about the company’s operations in 2010, stating it was operational during his employment. The applicant states that the Department’s inability to contact the company many years after his employment does not constitute evidence that he did not work for that employer.

18. With respect to Golden Red consulting, the applicant states that the delegate’s account of the inquiries is inconsistent with Mr Vikash’s account of his conversation with the Department’s staff. The applicant states that according to Mr Vikash, he received a call at inconvenient time and did not have the requested information available to him. He requested to be sent a written list of questions but the Department persisted with questioning. The applicant states that Mr Vikash operates several businesses and the applicant reported to Ashish Arora and not Mr Vikash with whom he had limited dealings. The applicant claims there is no reason for Mr Vikash to be fully aware of his daily activities and Mr Vikash did not deny the applicant’s employment. The applicant addressed each of the findings made during the investigations and provided an additional statement from Mr Vikash.

19. The applicant provided a further written submission to the Tribunal on 24 August 2018. The applicant states that there was no non-compliance with s. 101 and s. 103 and he claims to have worked for Aryans Communications Link, Golden Red Consulting and Convergys India.

20. The applicant notes that he received a positive VETASSESS assessment and VETASSESS conducted independent checks to verify his skills, which included contacting his employers and that indicates that his employment history was verifiable at the time of the application. The applicant states that prior to his employment at Apple, he had to submit to a thorough investigation by another company which was also able to verify his previous employment.

21. The applicant states that Convergys is a large global company and it is implausible that it could not be contacted by the investigator. The applicant notes that he provided an employment reference from Convergys which the delegate failed to properly take into account. The applicant states that he provided evidence of his employment with Aryans Communication and his employment with that company could be verified when he made the application for the visa. He left the company in November 2012 and verification checks occurred in November 2017. He did not maintain communication with the company and no adverse inference could be drawn from the Department’s inability to contact that employer.

22. With respect to his employment at Golden Red Consulting, the applicant states that the delegate’s findings are unsupported by evidence. The applicant notes that the employer confirmed that he was an employee of the company and that he reported to a different manager. The applicant addressed each of the adverse findings made in relation to Golden Red Consulting.

23. The Tribunal has considered the nature of the enquiries carried out by the Department staff.

24. In relation to Convergys, it was not possible to locate the company and the applicant’s employment could not be verified. In such circumstances, the Tribunal considers that there is no evidence to contradict the applicant’s claimed employment and no evidence to establish that the applicant provided incorrect answers or bogus documents in relation to that employment.

25. With respect to Aryans, the inquiries showed that the company could not be located, there appeared to be no website and no internet traffic to that company. The staff concluded that there was no evidence that the company ever existed. However the same inquiries identified the two directors of the company and noted that there was a complaint against the company for fraud. This would suggest that the company did exist and was operational at some point and this is supported by the evidence submitted by the applicant.

26. In oral evidence the applicant stated that it was a small company and when he worked there, there was a decline in the market and the company was on the verge of closing down. The applicant notes that he quit the company in 2012 and the investigation was carried out five years later. The applicant said that the contact numbers for the company were identified thorough an information company True Caller and that company does not confirm who the number belongs to. Normally if a phone number is not being used, that number would be assigned to another person, which is what may have happened in this case. The applicant could not explain why the person questioned claimed to have held the phone number for many years and said the person could have been confused about the number of years he had the number for. The applicant said that the company would have shut down in 2013 or 2014 and that is the reason the company’s existence may not have been confirmed in 2017 when the inquiries were made. The applicant notes that the company is still registered and he provided evidence of the company being operational during his employment.

27. The Tribunal acknowledges, and accepts, the applicant’s evidence that the inquiries were made many years after the applicant ceased working for Aryans. The fact that in 2017, five years after the applicant ceased to be employed, the company was not identified or not known does not establish that the company did not exist in 2012 when the applicant states he was employed there. As noted above, there is evidence of the company’s existence in the past and the Departmental inquiries confirm that the company did exist, even if only by the presence of a complaint against it.

28. With respect to Golden Red Consulting, the Tribunal does not consider that the claimed lack of internet traffic or the number of companies registered at the registered address can alter the nature of the applicant’s employment. These observations are not relevant in determining whether or not the applicant worked for the company. The applicant told the Tribunal that in India it is common for many organisations to operate from one location for tax purposes and operations could also be from multiple locations.

29. The applicant told the Tribunal that when he worked for Golden Red Consulting, the company was not large but it had a hierarchy and the staffing did vary over time. The applicant said that by the time of the investigation, his immediate supervisor Ashish Arora already left the company and could not be contacted. The Department officers spoke to Mr Vikash who operated a number of businesses. The applicant said that Mr Vikash did remember his employment but could not provide detailed information because he had little opportunity and time. He asked the Department officer to write to him but this was not done. The applicant states that he had left the organisation three years earlier by the time of the investigation and Mr Vikash could not be expected to remember details of each of his employees, given that he was running several businesses.

1. The Tribunal places weight on the fact that the person interviewed did appear to confirm the applicant’s employment at Golden Red Consulting and the Tribunal acknowledges as plausible the applicant’s explanation that this person was not his immediate supervisor and may not have been very familiar with the applicant’s employment. The delegate notes that the company is a small company and the owner may have been expected to be familiar with the applicant. That may be the case but it is not implausible that in a company of 40 staff – as was the case at the time of the applicant’s employment – the owner may not have detailed knowledge about each employee who worked for him some years ago, particularly if he had other companies and other employees.

2. With respect to the employee code, the applicant’s submission is that there is a difference between a payslip and the taxation record and the investigating officer confused the two. The applicant notes that his payslip did have the employee code while the taxation records did not need to.

3. The Tribunal notes that there is substantial amount of evidence of the applicant’s employment that was submitted with the application, including payslips and taxation records and letters of appointment from each of his employers, contracts and various certificates. Additional evidence is before the Tribunal, including contemporaneous evidence relating to the applicant’s employment, affidavits from the Golden Red Consulting manager who was interviewed confirming the applicant’s employment and additional materials. While the Tribunal acknowledges the possibility that the entirety of this documentary evidence has been fabricated, it is more likely, in the Tribunal’s view, that these documents do reflect the applicant’s employment as claimed

4. The applicant’s evidence to the Tribunal is that he is presently employed with Apple. Before he was hired, the company instructed a third party to check his background, including education and employment. The applicant said that his previous employment would have been verified before he was offered a job in Apple. The applicant provided affidavits from his employer stating that the employment had been verified by HireRight. The applicant also states that as part of his migration application, around 2015 VETASSESS contacted Aryans and verified his employment at Aryans.

5. The Departmental inquiries raise concerns about the applicant’s employment and the possibility that the applicant did provide bogus documents or incorrect answers in his application form concerning his employment. However, that is not sufficient. In Zhao v MIMA [2000] FCA 1235 the Court stated at [25] and [32].

   The decision-maker, acting under s 116, must be satisfied of one or other of the matters set out in that section before the visa can be cancelled. That state of satisfaction is a real state of satisfaction which must be reached on a consideration of the available material. A visa cannot be cancelled simply because the visa holder has failed to show cause why it should not. … A visa cannot be cancelled because the decision-maker has identified a possible ground of cancellation which the visa holder has not been able to rebut.

6. While that case was concerned with cancellation under s.119, the Court’s comments would be equally applicable to s.109. Furthermore, although the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 have no direct application in the context of administrative decision making, in the context of s.109, particularly where questions of fraud are involved, in deciding whether the ground for cancellation is made out it may be appropriate to bear in mind the nature of the allegations and the gravity of the consequences.

7. The Tribunal has formed the view that the concerns raised as part of the Departmental investigations do not provide sufficient information and are not of sufficiently detailed and probative nature as to form positive satisfaction that the applicant had breached 101 and s 103 of the Act. In the Tribunal’s view, such concerns raise a mere possibility of the breach, which is not sufficient to give rise to the power to cancel. Should further information become available, the cancellation of the visa held by the applicant may be considered anew.

8. For these reasons, the Tribunal finds that there was no non-compliance by the applicant in the way described in the s.107 notice. It follows that the discretionary power to cancel the applicant’s visa does not arise.

   Conclusion

9. As the Tribunal is not satisfied that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act, it follows that the discretionary power to cancel the applicant’s visa does not arise.

   DECISION

10. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 190 - Skilled - Nominated visa.

    Kira Raif
    Senior Member